Lunt v. Lance

• Decision Date: 30 May 2008
• Docket Number: No. 20070014-CA.,20070014-CA.
• Citation: 2008 UT App 192,186 P.3d 978
• Parties: Garth LUNT, trustee of the Garth O. Lunt Revocable Trust, Plaintiff, Appellee, and Cross-appellant, v. Harold LANCE and Diane Lance, Defendants, Appellants, and Cross-appellees.
• Court: Utah Court of Appeals

186 P.3d 978

2008 UT App 192

Garth LUNT, trustee of the Garth O. Lunt Revocable Trust, Plaintiff, Appellee, and Cross-appellant, v. Harold LANCE and Diane Lance, Defendants, Appellants, and Cross-appellees.

No. 20070014-CA.

Court of Appeals of Utah.

May 30, 2008.

Shawn W. Potter and Kraig J. Powell, Park City, for Appellants and Cross-appellees.

Randy B. Birch and Corey S. Zachman, Salt Lake City, for Appellee and Cross-appellant.

Before GREENWOOD, P.J., BENCH and McHUGH, JJ.

OPINION

GREENWOOD, Presiding Judge:

¶ 1 Harold and Diane Lance appeal the trial court's conclusion that Garth Lunt, trustee of the Garth O. Lunt Revocable Trust, had a prescriptive easement to land between his property and the Lances' (the Lane). The Lances also appeal the denial of their post-trial motion to disqualify Judge Pullan and their motions for a new trial. Lunt cross-appeals, claiming that the trial court inappropriately ruled on the issue of abandonment and, assuming that such a ruling was appropriate, incorrectly applied the doctrine of abandonment to the facts of this case. We affirm.

BACKGROUND

¶ 2 In 2002, Lunt brought suit against the Lances asserting rights to use and ownership of the Lane, a strip of land measuring thirty-four feet wide by approximately two-hundred feet long.¹ The Lane is located within the legal boundaries of the Lances' property. Despite the Lances' countersuit, the only issues remaining to be resolved at trial were whether Lunt was entitled to ownership or use of the Lane through either boundary by acquiescence or prescriptive easement. These two issues were heard by Judge Pullan in a bench trial in early November 2005. On the first day of trial, Judge Pullan noted that he had been "consulted about a boundary line issue" related to the Lunt property in his former capacity as the county attorney, but that he had "no recollection with whom [he had] talked." Both parties stated affirmatively at that time that they "had no concerns about a possible conflict of interest."

¶ 3 After conclusion of the trial, Judge Pullan ruled that Lunt had failed on his boundary by acquiescence claim but had prevailed in establishing that he had a prescriptive easement with respect to the Lane. Approximately four months later, on March 24, 2006, the Lances filed a rule 63(b) motion seeking to remove Judge Pullan and requesting a new trial, claiming that they had just learned the full extent of Judge Pullan's prior involvement with the Lunt property. Pursuant to rule 63, Judge Pullan immediately certified the motion to Judge Taylor, the presiding judge. See Utah R. Civ. P. 63(b)(2). Refusing to overturn Judge Pullan's factual findings or Ruling or to order a new trial, Judge Taylor reassigned any further proceedings in the case to Judge Schofield in order to avoid any appearance of impropriety. Shortly thereafter, the Lances filed a Motion for New Trial or in the Alternative to Amend Judgment and/or Take Additional Testimony. Judge Schofield denied the Lances' motion for a new trial, stating that Judge Pullan was in the best position to evaluate the evidence at trial and that his prior limited involvement with the property "did not create a bias or prejudice which justifies a new trial." In addition, Judge Schofield denied the Lances' alternative motion to amend or take additional testimony, holding that they "simply have no reason which justifies amending or relieving them from judgment."

Testimony at Trial

¶ 4 In addition to testifying himself, Lunt called three witnesses as part of his case in chief: (1) his brother Jack Lunt, who lived on the Lunt property temporarily and used the Lane numerous times over the years; (2) his sister Moneves Boren, who lived on and worked at the farm formerly located on the Lunt property; and (3) his eighty-eight-year-old neighbor, Eldon Carlisle, who lived near the Lunt property throughout his life. Jack Lunt testified that both the Lunt family and their predecessors in interest (the McNaughtens) used the Lane for moving farm equipment, mowing machines, cattle, bob sleighs, and wagons to and from the rear acreage of the Lunt property. Boren testified similarly, that the Lane was historically used for parking cars and for transporting farm equipment, hay, and cattle to and from the rear acreage of the Lunt property. Carlisle likewise testified that the Lane was historically used to transport cattle to and from the rear acreage of the Lunt property and that he remembered the Lane being used to park cars as early as the late 1920s. Carlisle further testified that he personally witnessed Mr. McNaughten using the Lane in this manner from the 1950s through the early 1990s. Each of these witnesses also testified as to their estimations of the Lane's dimensions.

¶ 5 In support of their case, the Lances called Duane Smith, Frankie Housell, and Frank Pia to testify.² Smith testified that he had worked on both the Lunt property (when owned by the McNaughtens) as well as the Lances' property (when owned by the Lances' predecessors in interest, the Witts). He also testified that he did not remember using the Lane to access the rear acreage of the Lunt property when he worked for Mr. McNaughten. Smith further stated that the Witts had machinery and farm equipment parked on both sides of the Lane, implying to him that the Lane was the Witts' property. Housell is the Witts' granddaughter and stayed with them every weekend during the late 1940s and early 1950s. She testified that the Lane was a driveway to the Witt property and that it measured roughly two-hundred feet in length. Finally, Pia, an expert photogrammetrist,³ testified that he believed the Lane to be approximately 150 to 175 feet in length.

Judge Pullan's Prior Experience

¶ 6 As stated above, Judge Pullan informed the parties on the first day of trial that he vaguely remembered some involvement in a boundary issue related to the Lunt property when he worked in the county attorney's office. Further inquiries by the Lances revealed that before his appointment to the bench, Judge Pullan was a member of the Heber City Planning Commission. It was in this capacity that then-Commissioner Pullan was involved with the Lunt property at issue. In September 1998—more than seven years prior to commencement of this suit—Boren appeared before the Heber City Planning Commission in an attempt to change the zoning of a portion of the Lunt property from agricultural to residential. The zoning change was unopposed and the seven-member planning commission approved the change unanimously.

ISSUES AND STANDARDS OF REVIEW

¶ 7 The Lances first claim that Judge Pullan erred by failing to recuse himself in light of his prior involvement with the property at issue. "`Determining whether a trial judge committed error by failing to recuse himself ... is a question of law, and we review such questions for correctness.'" State v. Tueller, 2001 UT App 317, ¶ 7, 37 P.3d 1180 (alteration in original) (quoting State v. Alonzo, 973 P.2d 975, 979 (Utah 1998)).

¶ 8 Next, the Lances allege that both Judge Schofield and Judge Taylor erred in denying the Lances' motions for a new trial. A trial court's denial of a motion for a new trial is upheld unless there is a clear abuse of discretion. See Alvey Dev. Corp. v. Mackelprang, 2002 UT App 220, ¶ 9, 51 P.3d 45.

¶ 9 Finally, the Lances argue that the trial court erred in holding that there was clear and convincing evidence to justify the conclusion that a prescriptive easement existed. A trial court's decision that clear and convincing evidence was presented is reviewed by the appellate courts for clear error, "notwithstanding the clear and convincing standard of proof below." In re R.R.D., 791 P.2d 206, 208 (Utah Ct.App.1990) (internal quotation marks omitted). And, while the conclusion that a prescriptive easement exists is a question of law, see Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998), it is so fact-dependent that trial courts are generally accorded "a broad measure of discretion when applying the correct legal standard to the given set of facts" and are only overturned if the trial court's decision was in excess of this broad discretion. Id.

¶ 10 On cross-appeal, Lunt argues that the trial court should not have addressed the issue of abandonment because it was not pleaded or argued by consent of the parties. This presents "a [question] of law that we review under a correction-of-error standard." Cowley v. Porter, 2005 UT App 518, ¶ 31, 127 P.3d 1224.

¶ 11 In addition, Lunt asks this court to hold that the trial court incorrectly applied the doctrine of abandonment and, as a result, unjustly limited his prescriptive rights in the Lane. The factual findings of a trial court sitting without a jury are reviewed for clear error. See Department of Human Servs. ex rel. Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997).

ANALYSIS

I. Judge Pullan's Recusal Was Not Required

¶ 12 The Lances argue that Judge Pullan erred in failing to recuse himself because of his previous involvement in a zoning issue related to the Lunt property. Concomitantly, they contend that Judge Taylor should have ordered a new trial for the same reasons. A judge shall recuse himself from any proceeding in which his "impartiality might reasonably be questioned, including but not limited to instances where ... the judge has ... personal knowledge of disputed evidentiary facts concerning the proceeding." Utah Code of Jud. Conduct Canon 3(E)(1)(a) (1997). Nonetheless, parties may waive disqualification of a judge otherwise disqualified under canon 3(E) of the Utah Code of Judicial Conduct if, after disclosure of the basis for disqualification, the parties consent to the judge's continued participation in the proceeding. See Utah Code of Jud. Conduct Canon 3(F). "Although litigants are entitled to a judge who will hear both sides and decide an issue on the merits of the law and the evidence presented, they are not entitled to a judge...